JUDGMENT
P.R. Raman, J.
1. In all these appeals arise common question.
2. The claimants in these appeals preferred applications under Section28A of the Land Acquisition Act before the District Collector claiming that they are entitled for enhancement of compensation based on the judgment in LAR 5 of 1986 of the Sub Court, Palakkad. It was contended that the appellants’ cases also are similar to that of the claimants in L.A.R. 5 of 1986.
3. The District Collector entertained the applications but refused to grant any relief. The applications were dismissed holding that the appellants are not entitled for any compensation as according to the District Collector, they failed to establish that the lands in question are similar to the land involved in L.A.R. 5 of 1986. The applications were referred to the Sub Court, Palakkad at the instance of the appellants as contemplated under Section 28A of the Kerala Land Acquisition Act.
4. By a common judgment, all these Land Acquisition References were disposed of by the Sub Court, without determining the question as to whether the properties in question are similar to the land involved in L.A.R. 5 of 1986, but holding that the applications filed by the appellants before the District Collector itself were barred by limitation. Going by the date of the award in L.A.R. 5 of 1986, it being 5.1.1989 – the court below held that the applications filed on 22.5.1989 and 23.5.1989 were beyond three months prescribed under the Act and hence dismissed the references against which the present appeals are filed.
5. Learned counsel for the appellants contended that when the applications were entertained by the District Collector and rejected them on the ground that the properties are not similar to the property involved in L.A.R. 5 of 1986, the court below could only consider that question in accordance with law. According to him, the court cannot reopen the question as to whether the applications filed are within time or not. He placed reliance on the decisions of this Court rendered while’ interpreting Section 18 of the Kerala Land Acquisition Act. In Special Tahsildar (LA.) v. Kallu (2000 (3) KLT 71) a
Division Bench of this Court considered the question as to whether a reference application filed under Section 18(2) is within the time as contemplated by the section is a matter for the District Collector and not for the reference court to consider. In that case, the reference application was made to the District Collector which was dismissed as time barred. An Original Petition was filed before this Court raising the question as to whether the application was time barred or not should be considered by the District Court or the reference court. The Original Petition was allowed holding that it is for the reference court to consider the question of limitation as well, against which a Writ Appeal was filed by the State. The Division Bench after considering the provision and other decisions, held that only if there is a valid application made to the District Collector should there be a valid reference. In that view, when application is filed before the District Collector, it is for him to consider whether the application is filed within time and only if the application is filed within time, the further question of referring to the reference court for considering the claim for enhancement should arise. According to the learned counsel for the appellants, the District Collector having entertained the applications under Section 28A it was no more open to the reference court to consider that question. The decision cited by the learned counsel in no way support the contention raised here under Section 18 of the Land Acquisition Act if the party is aggrieved by the award passed by the awarding officer and dissatisfied with the compensation awarded, he can seek a reference of the question to the court for which an application has to be filed before the District Collector. As per Section 18, the application has to state the grounds on which he objects the award and he can seek a reference of the question, provided, the application is made within six weeks from the date of such award if the person making it was present or represented before the Collector at the time when he made his award and in other cases within six weeks from the date of receipt of notice from the Collector under Section 12, or within six months from the date of Collector’s award whichever period shall first expire. Therefore, the application for seeking a reference has to be filed within the time prescribed under the proviso to Section 18(2), then only the Collector need make reference to the court for determination of the question raised. Therefore, the question as to whether the application itself should be entertained or not has to be decided by the District Collector, as filing an application within the time is a condition precedent for referring the question to the court. On the other hand, under Section28A, of the Land Acquisition Act which provides for re-determination of the amount of compensation on the basis of the award of the court, a person who has not made any such application under Section 18 could still seek for a re-determination of the compensation if in an award court has allowed the amount of compensation in excess of the amount awarded by the Collector and the person interested is covered by the same notification and who are also aggrieved by the award of the District Collector. In other words, even if a person fails to seek a reference under Section 18, if in a similar case enhancement of the compensation is awarded by the court he gets an opportunity for a re-determination of the question claiming the
benefit of the award of the court enhancing such compensation by filing an application under Section 28A. But it is also provided under Section 28A that such application has to be filed within three months from the date of the award of the Court based on which the re-determination is claimed. It is the District Collector who has to decide whether redetermination has to be made, at the first instance.
6. In this case, the appellants have preferred applications under Section 28A claiming the benefit of the award in L.A.R. 5 of 1986. Therefore, unless an application is filed within three months from the date of award in L.A.R. 5 of 1986, it will not be within the period of three months mentioned in Section 28A. However, the proviso to Section 28A also gives the benefit of excluding the time taken for obtaining the certified copy while reckoning the period of three months. As per Sub-section 2, the Collector shall conduct an enquiry and make an award determining the amount of compensation payable to the applicant. If a person is aggrieved by the award of the District Collector under Section 28A(2) then he can seek a reference to the court for determination of the quantum and the provisions of Section 28-A shall be applied to such reference as though applied to such reference under Section 18.
7. It is true that in this case the District Collector has dismissed the application holding that the land acquired from the appellants herein and the land covered by the award in L.A.R. 5 of 1986 are not similarly situated. It was on this ground that the District Collector had rejected the application. In other words, though the District Collector is entitled to dismiss the application either on the ground that the application is beyond time, if the application is filed beyond three months as prescribed under the Act, or it could be dismissed if on enquiry it is found that the land in question is not similar to the land covered by the decree and judgment in L.A.R. 5 of 1986, the benefit of which he has claimed in re-determination. The fact that the District Collector has dismissed the application on the latter ground by itself will not take away the jurisdiction of the court when the matter is ultimately referred to it since the correctness or otherwise of the decision of the District Collector is at large before the reference court. Suppose in a case the District Collector dismissed the application on the ground that it is beyond time that is also a matter which could be referred to the reference court in case the party seeks for such a reference under Sub-section 3 of Section 28A. Therefore, the court has necessarily to consider as to whether the application is barred by limitation as provided for under Section 28A in such cases. Therefore, the provision under Section 28A enables a reference court to re-examine the question and also to examine the correctness or otherwise of the decision rendered by the District Collector. If that be so, to say that the District Collector having entertained the application and rejected the same on the other ground namely, the properties are not similar to the one involved in L.A.R. 5 of 1986, the court had no jurisdiction to consider the other question already decided in favour of the appellants does not appear to be correct. When there are more than one grounds available for rejection the mere fact that the District Collector
has mentioned one of the grounds for rejecting the application by itself will not take away the jurisdiction of the Court to consider the very question as to whether the application is filed within time. Since the reference court has to consider ultimately as to whether the appellants are entitled for any enhancement of compensation necessarily it has to consider both these questions. In this case, it is seen that such a contention was raised by the other side and hence the court was perfectly right in considering that issue.
8. Though the position is as stated above regarding the power of the reference court under Section 28A, the decision impugned here is liable to be set aside on another ground. The District Collector entertained the application and rejected the same on the ground that the properties in question are not similarly situated as the land involved in L.A.R. 5 of 1986, and hence the appellants had no opportunity of satisfying the court that their applications were well within time by showing that the certified copy of the decree was obtained later and if the period taken for obtaining the certified copy is excluded it is well within time. Since when the matter is referred to the reference court at the instance of the appellants, naturally, they could agitate only on the question that was decided against them. At any rate, the court below should have given an opportunity to the appellants to satisfy the court that the applications were filed within time. It is specifically pleaded in the appeal memorandum that the court below did not even call for the records from the District Collector so as to satisfy itself that the applications were preferred well within time. In such circumstances, I find that the decision of the Court below rejecting the applications on the ground of delay without affording an opportunity to the appellants to substantiate their contention that it is well within time, has resulted in miscarriage of justice and is liable to be set aside on the ground of violation of principles of natural justice.
Accordingly, the judgment and decree of the court below are set aside and the matter is remitted to the-court below for fresh consideration in accordance with law. The appellants will be given an opportunity to satisfy the court that the applications filed by them before the District Collector were well within time. If the appellants file an application to call for the records from the District Collector, the same shall also be allowed by the court below and examine the records by itself to satisfy whether the applications were filed within time. If the court below, on such consideration and evidence, finds that the applications were well within time, then necessarily it has to consider the question as to whether the properties in question are similar to the property involved in L.A.R. 5 of 1986 and whether the appellants are entitled to the same benefit and enhancement of compensation. The appeals are accordingly allowed. The parties shall appear before the court below on 8th July, 2002.
The appellants are also entitled to refund of the court fee paid on the memorandum of appeal.